YESTERDAY’S LAWS, TOMORROW’S TECHNOLOGY: THE LAWS OF WAR AND UNMANNED WARFARE

YESTERDAY’S LAWS, TOMORROW’S TECHNOLOGY: THE LAWS OF WAR AND UNMANNED WARFARE

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I. INTRODUCTION
On a winter’s afternoon in February 2002, three men ascended a mountain near the Afghan city of Khost. Standing outside a series of caves, the men appeared to be talking. At 5’11”, Daraz Khan was the tallest of the three and may have been treated with a degree of deference by the other two. What the men talked about, or whether Khan was actually acting in some sort of leadership capacity, we will never know. As the men talked, a Predator unmanned aerial vehicle (UAV) observed their activities from the skies. Believing that the tall Khan could be the 6’4” Osama bin Laden, the CIA operative controlling the UAV launched one of the Predator’s Hellfire missiles. The missile attack killed the three Afghani men.
The Pentagon originally claimed the men were al Qaeda members, but poor weather and the site’s geographic isolation thwarted the military’s initial efforts to verify this information. Reports soon emerged, however, that these three men were poor villagers unaffiliated with terrorists or Islamic militants. The men had gone up the mountain hoping to collect scrap metal. Four days after the attack, while admitting that the U.S. did not know the identities of the three men, a Pentagon spokeswoman still defended the attacks as legitimate.
Eight years later, armed UAVs are an integral weapon in the war on terror. The United States has used them in Afghanistan, Iraq, Yemen, and Pakistan. The extent to which UAVs play a role in U.S. combat operations invites inquiry into the legality of the attacks themselves under international law. . Accordingly, this Comment will assess the international legality of current U.S. UAV operations by placing them in the context of already-existing scholarship on past attacks. I argue that the UAV attacks, while increasingly utilized to wage the war on terror, remain subject to rigorous legal review that properly balances promoting military interests and limiting civilian casualties. As a result, I conclude that most U.S. UAV attacks are legal as a matter of both jus ad bellum and jus in bello.
Part II.A introduces the reader to UAV attacks, providing a brief introduction to the modern use of UAVs as well as information on early UAV attacks in the war on terror. Part II.

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B provides a background on the laws of warfare, places the war on terror within this framework, and provides the legal community’s reaction to early UAV attacks. Part II.C explores the recent developments in UAV usage – specifically, the drone war in Pakistan, the increasing reliance on contractors for UAV operation, and the trend toward increasing autonomy for UAVs. Finally, Part III explores the legality of UAV attacks as well as ways to resolve the various legal uncertainties accompanying UAV use.

Works Cited

John F. Burns, U.S. Leapt Before Looking, Angry Villagers Say, N.Y. TIMES, Feb. 17, 2002, § 1 at 18.
Id.
Id.
The Predator is identified by its weapons system designator “MQ-1 Predator.” U.S. Air Force, MQ-1 Predator Unmanned Aircraft System (Nov. 2009), available at http://www.af.mil/information/factsheets/factsheet.asp?id=122 (last accessed Jan. 25 2010). The Predator unmanned plane is twenty-seven feet long and weighs 1,130 pounds (without weapons and fuselage tanks). Id. Remote control of the plane is conducted by a pilot, sensor operator, and mission intelligence coordinator, using a combination of line-of-sight piloting from the base and control via satellite uplink at other times. Id. The Predator has a range of 454 miles, can fly at an altitude of 25,000 feet, and can carry up to two laser-guided Hellfire missiles. Id.
Id.
Id.
Burns, supra note 1, at 18.
Linda D. Kozaryn, U.S. Following Up on Predator Strike; More Detainees Headed for GITMO, American Forces Press Service, Feb. 8, 2002, http://www.defenselink.mil/news/newsarticle.aspx?id=43954.
Burns, supra note 1, at 18.
Id.
Id.
Indeed, speaking about Pakistan, CIA Director Leon Panetta described UAVs as “the only game in town.” CNN, U.S. Airstrikes in Pakistan Called “Very Effective,” May 18, 2009, http://www.cnn.com/2009/POLITICS/05/18/cia.pakistan.airstrikes.
Supra notes 1-10 and accompanying text.
See, e.g., D. Clare, California Air National Guard Embraces New Mission, U.S. Air Force (Aug. 16, 2006), http://www.af.mil/news/story.asp?storyID=123025240 (noting that one Reconnaissance Squadron’s UAVs had fired 59 Hellfire missiles during combat operations).
See infra notes 31-34 and accompanying text for information on the 2003 UAV strike in Yemen.
See infra Section II.C1 for a discussion of U.S. UAV attacks in Pakistan.
The United States is a party to numerous treaties that limit its ability to wage war or engage in certain activities during warfare. Because of its recognition of its international obligations, the United States’ compliance with the international law is a concern to both the U.S. and the international community.